Sen. Wyden demands vote on American copyright, patent treaties

Two new amendments from Sen. Ron Wyden (D-OR) would force the Anti- …

Sen. Ron Wyden (D-OR) is a long-time opponent of the secretly negotiated Anti-Counterfeiting Trade Agreement (ACTA). Today he introduced an amendment to a Senate "jobs bill" that would force ACTA to come before Congress for approval. A second amendment would make the US Trade Representative, which negotiates US trade deals, drop the veil of secrecy around its copyright and patent negotiations.

USTR currently insists the president can ratify ACTA without the usual Senate sign-off on treaties. The current legal thinking seems to be that Congress delegated this authority to the executive branch by passing 2008's PRO-IP Act, which contained a general call to cut down on counterfeiting, etc.

That legal approach is contested; Wyden's amendment simply overrules it. "Notwithstanding section 303 of the Prioritizing Resources and Organization for Intellectual Property Act of 2008 (15 U.S.C. 8113) or any other provision of law," it says, "the President may not accept, or provide for the entry into force with respect to the United States of, any legally binding trade agreement that imposes obligations on the United States with respect to the enforcement of intellectual property rights, including the Anti-Counterfeiting Trade Agreement, without the formal and express approval of Congress."

His second amendment tries to force a change in how the whole process around such treaties is handled. Right now, the US attempts to keep its negotiating positions a secret. What vital national security interests could be at stake if the public knew USTR was promoting "graduated response" laws or proposing changes in ISP liability? Wyden doesn't believe there are any.

Even with ACTA, where the text was officially kept secret until it was too late to make major changes, unofficial leaks stirred public debate and ultimately removed many of the most odious provisions from the final text. The "next ACTA" is the Trans Pacific Partnership (TPP), a regional trade deal involving countries from around the Pacific Rim. Wyden wants to ensure the public doesn't have to rely on leaks to find out what's being proposed in its name.

He proposes a rule that would force USTR to release any negotiating proposals already shared with other nations in the TPP talks if they apply to "intellectual property, the Internet, or entities that use the Internet, including electronic commerce." In the future, USTR would have to post such documents from all trade negotiations within 24 hours of being shared with other countries.

45 Reader Comments

Any supposition on the odds of these getting passed? It sounds fairly sensible from the ars description (to be fair I haven't read them much further in detail) - but is it just a pipe dream or does this have a real shot?

Correct me if I'm wrong but the PRO-IP Act isn't a law is it? How does it come in to play when making legal arguments based off of it? If it is a law, wouldn't the president have to sign any amendments? If he is willing to sign this one, I would guess it wouldn't have to be offered up to begin with. So if it's not actually law, how would this amendment be binding?

Politicians are a difficult bunch, b/c one may do something seemingly awesome one time, but then have a track-record of stupidity. A lot of politicians that seem to be stepping up for the people are sometimes just throwing a megalomaniac tantrum about why they, as a senator or rep, are being kept in the dark about things they think they should know. They throw a fit, we think they're stepping up for us, and they go "oh...uh, yeah...that's why I'm doing it." Most things politicians do are self-motivated, not constituent-motivated.

IE: the fastest way to get laws passed or repealed is if they directly impact the congressmen/women themselves, especially their bank accounts, or the freedoms they enjoy. I'm reminded of a few situations at the city-level I'm in where folks would complain and complain about some screwy speed limit signs that created such a horrendous speed trap officers were cashing in on every month. City officials ignore the pleas for this to get changed for the longest time until a higher city official was caught in it himself. Then, surprise, it was as if the situation was resolved over night.

To be honest, I'm surprised all of Congress hasn't stepped up sooner on such things. It seems the executive branch feels they can act as judge, jury and executioner these days using military authority (overseas, and now authorized to use here in the states), and both congress and the judicial branch sit around like whipped puppies letting it happen. What's it take to light a fire under someone's ass? Convict a senator of treason for something petty, and watch them get shipped to guantanamo?

PRO-IP and PROTECT IP are two different things. Check it out on Wikipedia.

I hope this guy runs for president next time through. I'm not a Democrat but I'd vote for him just because he is frequently shown in articles on here to possess a peculiar and rare trait known as Common Sense. Also seems to have a handful of Decency DNA in his genes.

As it's just a normal statue and not a Constitutional amendment it can be overridden by any NEW law (or if the Judicial branch were to declare part or all of it to be unconstitutional).

Yes, the President would have to sign off on this new law. However, by attaching it to the jobs bill working its way through congress Sen. Wyden is hoping that the president won't veto the entire bill just to prevent this additional language. That's often how pork barrel projects worm their way into bills to gather enough votes "for" something important (like a stimulus bill or a budget). Since the President lacks a line-item veto he cannot simply veto this one portion of the bill. It's all or nothing if it passes.

The real trick is to get the Senate to vote for this amendment and to get it through conference - where House and Senatve versions of bills are reconciled.

The Republicans will never allow votes on these "treaties"; they are being paid a LOT of money by the entertainment industry to try to wipe out "piracy". The amount of money the Republicans get is enormous and the entertainment people expect return on their bribes..oops...I mean investments.

The Republicans will never allow votes on these "treaties"; they are being paid a LOT of money by the entertainment industry to try to wipe out "piracy". The amount of money the Republicans get is enormous and the entertainment people expect return on their bribes..oops...I mean investments.

I may be mistaken, but I was under the impression that the entertainment industry is by and large more associated with the Democrats as far as campaign contributions and/or politicians proposing laws on their behalf goes.

I'm confused as to the use of the term "notwithstanding" here. Doesn't it basically make the whole amendment pointless if it is subjugated by section 303 of the PRO-IP act or any other law. Isn't that what notwithstanding mean? That section 303 language has precedence over any language in the amendent?

The Republicans will never allow votes on these "treaties"; they are being paid a LOT of money by the entertainment industry to try to wipe out "piracy". The amount of money the Republicans get is enormous and the entertainment people expect return on their bribes..oops...I mean investments.

I may be mistaken, but I was under the impression that the entertainment industry is by and large more associated with the Democrats as far as campaign contributions and/or politicians proposing laws on their behalf goes.

Copyright/patent issues don't usually break down on the traditional Dem/Repub lines--just look at the coalition between Issa and Wyden to stop SOPA/PIPA.

The Republicans will never allow votes on these "treaties"; they are being paid a LOT of money by the entertainment industry to try to wipe out "piracy". The amount of money the Republicans get is enormous and the entertainment people expect return on their bribes..oops...I mean investments.

I may be mistaken, but I was under the impression that the entertainment industry is by and large more associated with the Democrats as far as campaign contributions and/or politicians proposing laws on their behalf goes.

I would hazard a guess that the employees of the entertainment industry (actors/directors/etc.) are Democratic leaning, but the actual businesses (content owners) are Republican leaning. Of course I could be wrong.

I've been reading some Roman history and it has struck me how much more power the executive branch has now, and how essentially undemocratic that is (the same rough arc as Rome). Yes, Congress can't get anything done, Yes Obama will do better than the alternatives, yes, the Iraq war turned out surprisingly well, no I don't think everything is a conspiracy. But for all the huffing and puffing over health care reform of 'unconstitutional' it's clearly a talking point for political purposes. Because both parties have been handing over authority to the executive branch for decades, without regard to what the Constitution intended.

Congress wants less responsibility, clearly, as they've passed less and less bills and pushed everything onto the executive branch, all the blame and all the work.

Wars are approved after the fact. The security apparatus enlarges without check, an unprecedented security apparatus at every level of gov't. Congress calls for the President to personally intervene in pipelines. The President decides which financial institutions to bail out. The executive-nominated Supreme Court decides more and more basic law without improving democracy.

It's a common expedient that the president takes over during a war just to get things done, but this is clearly above and beyond that. That is, regardless of how much of a 'war' this is. Both parties are abdicating the more open, deliberate legislation process in favor of the Presidency and state governors. It's a lazy solution to increasing scrutiny and ultimately undemocratic. The president cannot represent everyone, that's why Congress needs to do their job. The Republicans in the House seem to be so happy with the status quo they'll do nothing.

I worry for the future. It's within my horizon that the automated surveillance, data collection and robot capability of the ruling faction will exceed our ability to organize a response. In this sense, Democrat and Republican won't matter (as they arguably don't today). It will be the 1% controlling the message, controlling the parties and controlling law and order, waging war without consent, because no lives are at stake. Robots require dollars, not allegiance or faith or hope or family. The rich have plenty of money. They'll have even less skin in the game than they do now, when they seemed quite content with a gov't shutdown and rating downgrade. It's a mesmerizing, troubling thought.

Any supposition on the odds of these getting passed? It sounds fairly sensible from the ars description (to be fair I haven't read them much further in detail) - but is it just a pipe dream or does this have a real shot?

Pretty good. This isn't about copyright, this is about division of powers and the Senate's role in negotiating treaties. Congress will always unite against expansion of executive powers.

The Republicans will never allow votes on these "treaties"; they are being paid a LOT of money by the entertainment industry to try to wipe out "piracy". The amount of money the Republicans get is enormous and the entertainment people expect return on their bribes..oops...I mean investments.

Dude, your hating on Republicans this time is misplaced; the Entertainment Industries strongly lean Democrat. As in even the top lobbyist of the industry is a former Democrat Senator.

The Republicans will never allow votes on these "treaties"; they are being paid a LOT of money by the entertainment industry to try to wipe out "piracy". The amount of money the Republicans get is enormous and the entertainment people expect return on their bribes..oops...I mean investments.

Dude, your hating on Republicans this time is misplaced; the Entertainment Industries strongly lean Democrat. As in even the top lobbyist of the industry is a former Democrat Senator.

Irrelevant. The progressive left's mantra is that all evil emanates from the Republican party. Any Democrat who votes with them is, for the period of the vote, temporarily, a Republican. One more reason why I'm a recovering Democrat.

IE: the fastest way to get laws passed or repealed is if they directly impact the congressmen/women themselves, especially their bank accounts, or the freedoms they enjoy. I'm reminded of a few situations at the city-level I'm in where folks would complain and complain about some screwy speed limit signs that created such a horrendous speed trap officers were cashing in on every month. City officials ignore the pleas for this to get changed for the longest time until a higher city official was caught in it himself. Then, surprise, it was as if the situation was resolved over night.

Reminds me that Righthaven, or some other p2p lawsuit, basically discarded any john doe ip address that came back pointing to a cop or politician...

The Republicans will never allow votes on these "treaties"; they are being paid a LOT of money by the entertainment industry to try to wipe out "piracy". The amount of money the Republicans get is enormous and the entertainment people expect return on their bribes..oops...I mean investments.

Dude, your hating on Republicans this time is misplaced; the Entertainment Industries strongly lean Democrat. As in even the top lobbyist of the industry is a former Democrat Senator.

I don't think any party can escape blame, as the whole thing is a very nasty mixture of copyright, patent and trademark that have implications across multiple industries. Only real difference is the rationalizing done for voting for rather than against.

The Republicans will never allow votes on these "treaties"; they are being paid a LOT of money by the entertainment industry to try to wipe out "piracy". The amount of money the Republicans get is enormous and the entertainment people expect return on their bribes..oops...I mean investments.

Dude, your hating on Republicans this time is misplaced; the Entertainment Industries strongly lean Democrat. As in even the top lobbyist of the industry is a former Democrat Senator.

Irrelevant. The progressive left's mantra is that all evil emanates from the Republican party. Any Democrat who votes with them is, for the period of the vote, temporarily, a Republican. One more reason why I'm a recovering Democrat.

Lots of reasons to love living here in Oregon, but yes, Senator Wyden is one of the good ones. Occasionally he stumbles, for example lately he's been joining together with Republican Rep Paul Ryan to advocate a plan to voucherize Medicare, but in general Wyden's positives far outweigh his negatives.

In fact, Senators like Wyden are one of the best arguments AGAINST term limits. I used to be for term limits, but there's something else much more effective than term limits - it's called elections.

The Republicans will never allow votes on these "treaties"; they are being paid a LOT of money by the entertainment industry to try to wipe out "piracy". The amount of money the Republicans get is enormous and the entertainment people expect return on their bribes..oops...I mean investments.

Dude, your hating on Republicans this time is misplaced; the Entertainment Industries strongly lean Democrat. As in even the top lobbyist of the industry is a former Democrat Senator.

I don't think any party can escape blame, as the whole thing is a very nasty mixture of copyright, patent and trademark that have implications across multiple industries. Only real difference is the rationalizing done for voting for rather than against.

Both parties tend to vote in the interests of Hollywood, but sadly the Democrats even more so - and I say this as a lifelong Democrat.

The Republicans will never allow votes on these "treaties"; they are being paid a LOT of money by the entertainment industry to try to wipe out "piracy". The amount of money the Republicans get is enormous and the entertainment people expect return on their bribes..oops...I mean investments.

Dude, your hating on Republicans this time is misplaced; the Entertainment Industries strongly lean Democrat. As in even the top lobbyist of the industry is a former Democrat Senator.

Irrelevant. The progressive left's mantra is that all evil emanates from the Republican party. Any Democrat who votes with them is, for the period of the vote, temporarily, a Republican. One more reason why I'm a recovering Democrat.

Also, anything Obama does is good, regardless of what it is.

Conversely, to today's righty anything Obama does is bad, and is socialistic as well.

Ok enough with the left-right back-and-forth, how about we get back to discussing the actual issues here?

I've been reading some Roman history and it has struck me how much more power the executive branch has now, and how essentially undemocratic that is (the same rough arc as Rome). Yes, Congress can't get anything done, Yes Obama will do better than the alternatives, yes, the Iraq war turned out surprisingly well, no I don't think everything is a conspiracy. But for all the huffing and puffing over health care reform of 'unconstitutional' it's clearly a talking point for political purposes. Because both parties have been handing over authority to the executive branch for decades, without regard to what the Constitution intended.

Congress wants less responsibility, clearly, as they've passed less and less bills and pushed everything onto the executive branch, all the blame and all the work.

Wars are approved after the fact. The security apparatus enlarges without check, an unprecedented security apparatus at every level of gov't. Congress calls for the President to personally intervene in pipelines. The President decides which financial institutions to bail out. The executive-nominated Supreme Court decides more and more basic law without improving democracy.

It's a common expedient that the president takes over during a war just to get things done, but this is clearly above and beyond that. That is, regardless of how much of a 'war' this is. Both parties are abdicating the more open, deliberate legislation process in favor of the Presidency and state governors. It's a lazy solution to increasing scrutiny and ultimately undemocratic. The president cannot represent everyone, that's why Congress needs to do their job. The Republicans in the House seem to be so happy with the status quo they'll do nothing.

I worry for the future. It's within my horizon that the automated surveillance, data collection and robot capability of the ruling faction will exceed our ability to organize a response. In this sense, Democrat and Republican won't matter (as they arguably don't today). It will be the 1% controlling the message, controlling the parties and controlling law and order, waging war without consent, because no lives are at stake. Robots require dollars, not allegiance or faith or hope or family. The rich have plenty of money. They'll have even less skin in the game than they do now, when they seemed quite content with a gov't shutdown and rating downgrade. It's a mesmerizing, troubling thought.

I'm old enough to remember when repubs & dems disagreed vehemently on policy, but mostly regarded their counterparts on the other side of the aisle as "loyal opposition" & could even develop close friendships. Amazingly enough some pretty great stuff was accomplished. Statesmen like Daniel Patrick Moynihan or Everett Dirksen were capable of well reasoned debate & weren't hesitant to disagree with "the party line" when circumstances indicated a different direction was of benefit to the greater good.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur;

No law passed by Congress could reasonably be interpreted to grant such authority to the President. They would have to pass an amendment to the Constitution and have it approved by the states.

The notion that a law passed years ago somehow gives future binding consent to a treaty that had not yet been proposed is offensive on its face. I'm glad someone in the Senate has spine enough to clarify this "confusion" the administration is suffering.

The amount of money the Republicans get is enormous and the entertainment people expect return on their bribes..oops...I mean investments.

Wyden's Silicon Valley bribers...oops...I mean "backers" also expect a return on their investment (and it looks like they're getting their money's worth!).

But hey, bribery and pork barrel projects are A-OKAY when it's your guy's doing the bribing and porking, amirite?

Shameless fucking hypocrites.

So, calling for a more transparent debate about ACTA rather than allowing it to be shoved down the throat of the populace is a sign of bribery? Silly us for not realizing what a great idea another backroom piece of legislation that makes copyright holders the internet police is.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur;

No law passed by Congress could reasonably be interpreted to grant such authority to the President. They would have to pass an amendment to the Constitution and have it approved by the states.

The notion that a law passed years ago somehow gives future binding consent to a treaty that had not yet been proposed is offensive on its face. I'm glad someone in the Senate has spine enough to clarify this "confusion" the administration is suffering.

Yeah. The Senate is really obligated to oppose ACTA simply because ignoring it would undermine their own power.